Martin v. Michael

23 Mo. 50

• Court: Supreme Court of Missouri
• Decided: March 15, 1856
• Status: Published

Opinion

LEONARD, Judge,

delivered the opinion of the court.

In Wiggins and others against Strong and others, (2 Johns. Ch. R. 144,) Chancellor Kent said: “This is the case of a creditor on simple contract, after an action commenced at law and before judgment, seeking to control the disposition of the property of his debtor under judgments and executions on the ground of fraud. My first impression was in favor of the plaintiffs, but, upon examination, I am satisfied that a creditor at large, and before judgment and execution, can not be entitled to the interference which has been granted in this case. In Angell v. Draper, (1 Vern. 399,) and Shirley v. Watts, (3 Atk. 2,) it was held that the creditor must have completed his title at law, by judgment and execution, before he can question the disposition of the debtor’s property ; and in Bennett v. Musgrove, (2 Vern. 51,) and in a case before Lord Nottingham, cited in Batch v. Wastoll, (1 P. W’ms, 445,) the same doctrine was declared; and so it is understood by the elementary writers. (See Mitford, 115; Coop. Eq. PL 149.) The reason of the rule seems to be, that until the creditor has established his title, he has no right to interfere, and it would lead to an unnecessary and perhaps a fruitless and oppressive interruption to the exercise of the debtor’s rights. Unless he has a certain claim upon the property of the debtor, he has no concern with his frauds. On the strength of settled authorities, I shall accordingly grant the motion for dissolving the injunction.” Afterwards, in Wintringham v. Wintringham, (20 Johns. Rep. 296,) the same doctrine was recognized and acted upon by the Supreme Court of New York, and we are not aware of any case, anywhere, in which it has been held otherwise.

An attaching creditor stands on no better ground than one who sues by the ordinary process of the court. The reason of the rule is equally applicable to both classes of cases ; and so it was expressly decided in tbe Supreme Court of New Jersey, in Melville v. Brown, (1 Harrison, 367.) Let tbe judgment stand affirmed.